Tag: 26.010

“Unfortunately There is No Opt Out” – Try Again, Schools!

Tired of those school district letters saying “there is no opt out” for accelerated instruction under HB 4545?  Me too.  Because it’s not only a lie, it’s deliberate ignorance.  A minute of reading makes it clear. They’ve got me ranting tonight.

Opt Out and Compulsory Attendance: A Red Herring

We’ve recently seen a number of communications from schools indicating that they cannot “permit” a parent to opt out of Accelerated Instruction under HB 4545 because it is subject to compulsory attendance.  In this brief video, we look at the actual words of the opt out and compulsory attendance statute and consider an uncontroversial example that demonstrate how this claim is legally untenable and, if true, would render the opt out statute a complete nullity.

Expressio Unius Est Exclusio Alterius

This Latin phrase, used in the law, means “the expression of one thing is the exclusion of the other.” In other words, when certain things are specified in a law, an intention to exclude all others from its operation may be inferred.

Why do I tell you this? Because the brilliant lawyers that school districts hire with your tax dollars love to ignore that age old maxim when it comes to parental requests to opt out of full period AI. You see, the Opt Out law says: “(a) A parent is entitled to remove the parent’s child temporarily from a class or other school activity that conflicts with the parent’s religious or moral beliefs if the parent presents or delivers to the teacher of the parent’s child a written statement authorizing the removal of the child from the class or other school activity.  A parent is not entitled to remove the parent’s child from a class or other school activity to avoid a test or to prevent the child from taking a subject for an entire semester.

Now catch that last part. The law specifies two things that define when a parent is NOT ENTITLED to remove the child from an activity. The first is to avoid a test, which does not apply to full period AI classes. The second is to prevent a child from taking a subject for an entire semester. This also does not apply to removal from full period AI as (a) the student already has other math or language arts classes and (b) by offering to do AI outside of the full period setting, the parent defeats any argument that AI itself is a subject we are trying to avoid.

So when the school tells you that you are not entitled to remove your child from full period AI because another part of the Education Code says its required (it doesn’t really say that, but let’s pretend with them), just remind them that under the principle of Expressio Unius Est Exclusio Alterius, accelerated instruction can never be considered an exception to 26.010, because the law presumes that all exceptions have been incorporated in the statute and unexpressed ones cannot be implied.

NOTE: This theory applies equally if not moreso to AI that is not in place of electives.

Houston ISD acknowledges 26.010 Opt Out Rights

Fox 26 reporter Andrea Watkins has made real headway in getting school districts on the record about a parent’s right to Opt Out.  In her initial report, Katy ISD Director of Assessment, Alison Matney (who has made inaccurate posts on this website) acknowledged that while there is no process to opt out, parents can just keep their kids home.  Today, however, Watkins’ latest report contained a real bombshell.  In response to questions about the Houston AFT’s endorsement of the Opt Out movement, the Houston ISD issued a statement acknowledging that while state assessments are mandatory, parents can remove their children from objectionable instruction under Tex. Ed. Code sec. 26.010.

26010 admission

Earlier this year, we reported on the admission of the state’s top school law firm that parents could “technically” opt out.  Houston ISD’s acknowledgement of parental rights to refuse assessment under sec. 26.010 marks, to our knowledge, the first explicit recognition of what TPERN has long urged is the plain meaning of the statute.  TPERN salutes Andrea Watkins for her hard hitting investigation and Houston ISD for their recognition of parental rights in the face of strong pressure from the Texas Education Agency to intimidate and coerce parents into assessment.

Update:  This is the official Houston ISD Opt Out form.  It is legal, people!  Demand your local schools respect your rights!12798821_10153991431898684_3910673097468946811_n

Five Responses When The School Says 26.010 Means You Can’t Opt Out

It’s that time of year.  Schools are sending around copies of Tex. Ed. Code sec. 26.010, accusing Opt Out groups of misleading parents, and trying to coerce people into subjecting their kids to assessments.  Don’t be a sheep.  The TEA’s interpretation of Tex. Education Code sec. 26.010 has never been affirmed by any court.  This is just what they hope it means.  There are strong legal construction arguments which indicate that the TEA is wrong.  Here are five different responses to the 26.010 argument.  If the TEA or any school district lawyer can provide a case that says any of these are incorrect, let’s see it.

Five Responses When the School Cites 26.010 Saying It Prohibits Opt Out

1 – The STAAR is not a test; it is an assessment. STAAR is created by Chapter 39 of the Education Code which refers to it as an assessment over 450 times, while referring to other testing instruments as tests. The Legislature is presumed to intend the words that it chooses. By choosing to call STAAR an Assessment and not a Test, the Legislature precludes the school from relying on the “avoid a test” portion of 26.010.

2 – Chapter 26, taken as a whole, shows STAAR is not a test. Chapter 26 contains parental rights provisions, including the right to access various curricular material. It contains a separate section for access to assessments (26.005) and access to tests (26.006). Thus, in the same chapter as 26.010, the legislature clearly indicates that there is a difference between assessments and tests. You can’t conveniently conflate the two concepts when the legislature has purposely distinguished them.

3 – Access to STAAR is available to parents only through 26.005 and not 26.006. Apart from the definitional issue, the practical reality shows that STAAR is not a test. If STAAR were a test, schools would be required to provide parents access on school premises under 26.006. They do not and cannot. The only access is from the TEA under 26.005. If you get a 26.010 letter from the school try this response: “Dear School: If STAAR is a test, I demand access to it after my child takes it at the school under Texas Education Code 26.006. If you cannot provide me a date to examine the STAAR assessment at the school within 30 days, I will presume that you do not really believe it is a test.” (Update for 2019: Although this point is still technically true, with the addition of STAAR questions to the parent portal, the difference in access is much less stark.  For that reason I’d don’t suggest using this tactic, other than to note what is stated in the first sentence).

4 – My purpose is not to avoid a test. Section 26.010 is written in terms of purpose and not effect. A parent can’t invoke 26.010 to avoid tests. They can invoke 26.010 on the basis of their religious or moral beliefs, and that may result in a missed test. If the school’s interpretation were correct, parents could opt their child out of sex ed classes, but then be required to return to the class and view graphic anatomical charts on a test. That is not how 26.010 works and the schools know it. They are simply reading it that way to coerce parents into letting their kids be assessed.

5 – Subsection (b) does not limit opt out rights. Subsection (b) simply codifies the fact that parents who choose to opt out must still satisfy grade level or graduation requirements. Reading (b) as a limitation on (a) even though it contains no limiting language or exception language is sloppy lawyering.  It indicates a desire to reach an outcome, not analyze an issue.  Since substitute assessments and GPC processes exist to accomplish both promotion and graduation requirements, subsection (b) cannot be read as a limitation on the right to Opt Out of an assessment, even if that was the intent of the subsection! In fact, the better argument is that the existence of subsection (b) shows that parents can opt out but must still meet grade level or graduation requirements of the school.

An Opt Out Course for Schools

If there was any doubt that the Opt-Out movement is gaining steam and raising real concerns among school districts, administrators and the TEA, that doubt was put to rest when one of the state’s premier education law firms, Walsh, Anderson, which represents dozens, if not hundreds, of school districts around the state, created a special Audio Seminar for its client school districts entitled ““OPTING-OUT” OR “OPTING-IN”  – AN OVERVIEW OF PARENTS’ RIGHTS”.  Along with this audio conference, a handout was provided which will undoubtedly mirror the response letters parents receive this year from Walsh, Anderson represented districts.  The handout, which is linked at the end of the article, ranges from condescending to didactic to, at times, realistic about the growing demand from parents that school districts recognize their parental right to remove their children from state assessments administered as part of the STAAR/EOC assessment program.  In this article, I will focus on a limited number of the Walsh, Anderson arguments.  I want to preface this by saying that, notwithstanding the “hard line” espoused by the Walsh, Anderson lawyers who wrote this piece, we have resolved numerous disputes with Walsh, Anderson-represented districts to the satisfaction of our parent clients. My chief misgiving about this document is that the lawyers writing it had several opportunities to offer sound legal advice to administrators about how they can bridge the gap between the demands of parents and the demands of the TEA and still remain within the letter of the law.  They chose not to offer that advice.  This is disappointing, because it sets up unnecessary conflict that neither parents nor school administrators want.  Indeed, the paper opens by admitting that “many school districts and school personnel agree that Texas pedagogy has become too focused on standardized testing,” but then fails to help those districts or school personnel who may wish to find creative solutions to parent demands that will satisfy both the TEA, the district, parents, and, most importantly, student needs.  It is a missed opportunity, and one that will needlessly increase conflict between districts and parents.

The 26.010 Debate

Predictably, the seminar started with a review of the Education Code’s opt out provision contained in section 26.010 and the infamous “avoid a test” language.  Although the author accuses Opt Out groups of deceiving parents by not telling them about the portion of the statute that refers to avoiding a test, nearly every opt out group educates parents about this issue because it is the anticipated response parents receive from the school.  What the seminar fails to address is whether the “avoid a test” language refers to intent or effect.  The provision that states “[a] parent is not entitled to remove the parent’s child from a class or other school activity to avoid a test.” No cases have determined whether this language refers to the motivation of the parent or to the effect of the opt out decision.  If the former, then the myriad reasons that parents have to oppose the Texas assessment regime clearly evince a motivation that is far beyond avoiding a test.  If the latter, then the school’s interpretation is correct (assuming a STAAR assessment is the same thing as a “test”).  However, this question has never been answered and should not be so neatly dismissed by school districts.

However, the most disingenuous part of this paper is the contention that subsection (b) of the statute also serves to prohibit opt out rights.  Subsection (b) reads, in the relevant part, “[t]his section does not exempt a child from satisfying grade level or graduation requirements in a manner acceptable to the school district and the agency.”  This is no limitation on opt out rights, period.  To claim otherwise shows either an inabilty to read a statute or simple pandering to the TEA and school districts.  This section makes clear that simply because one opts out, they are not exempt from grade level or graduation requirements. (Incidentally, the inclusion of this section could be read as implicitly recognizing that parents can opt out of state assessments.)  In other words, if you opt out, you aren’t therefore exempt from promotion or graduation requirements.  Note, however, that it recognizes the existence of other acceptable means of meeting the requirements.  In Grade 5 or 8, that means a GPC meeting.  In high school, it may mean completion of a substitute assessment,  or simply accepting a certificate of completion rather than a diploma.  What it does not mean, however, is that this section is any type of limitation on the existence of opt out rights.

Finally, the author of this presentation dismissively treats the distinction, created by the Legislature, between an assessment and a test, using arguments intended to persuade non-lawyers, but which are ultimately weak legal arguments.  First, she suggests that to understand that the words “test” and “assessment” mean the same thing in the statute, we should look at the TEA rules.  However, most law students could tell you that regulations cannot alter statute.  Simply because the TEA wants it to mean the same thing, doesn’t make it so.  Quite to the contrary.  The author reliance on an Attorney General’s opinion that refers to assessments as tests in a clause in one sentence likewise proves the point.  Again, the starting point for interpreting the law is not the regulations and not an AG opinion, it is the plain language of the law and the rules of statutory construction to resolve any ambiguity.  Among the rules relevant here are “'[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.’. . . .We further presume that the Legislature selected statutory words, phrases, and expressions deliberately and purposefully.” Great-W. Life & Annuity Ins. Co. v. Texas Atty. Gen. Child Support Div., 331 S.W.3d 884, 893 (Tex. App.—Austin 2011, pet. denied).  Here we know the Legislature has carefully distinguished between tests and assessments.  Although the author argues that the words “test” and “assessment” are used interchangeably throughout the statute, this is simply not true.  Take, for example, Chapter 39 of the Education Code, which is the very section that sets forth the assessment scheme for the State of Texas.  In that entire section, there is only one instance of “test” arguably being used to refer to the state assessments (and that is in reference to receipt of the materials from the contractor and is limited to 5th and 8th grade assessments). Every other usage of the word “test” in Chapter 39 refers to either field testing of questions, or to SATs or AP tests.  In contrast, that section uses the word “assessment” over 450 times.  That is not exactly interchangeable.  Moreover, in Chapter 26, the section on parent rights, “assessment” and “test” are never used interchangeably.

However, these are the best arguments that the schools could come up with, and we will see them again in 2014-2015.

What Constitutional Rights?

The memo further dismisses parental assertions that their 14th Amendment rights permit them to opt out.  The author of the memo writes that “such arguments [are] not based on any legal premise, rather, the argument essentially consists of ‘I’m right and you’re wrong.’”  Not to be too flippant, but the legal premise is quite clear and really not open to controversion.  It goes like this: “The US Constitution trumps state law where the two conflict.”  It’s called the Supremacy Clause and is well established.  This dismissive approach to parental concerns is not helpful, nor is it good counseling to school district clients.  Now, there is a real question as to whether the 14th Amendment permits a parent to opt out without consequence from state assessments.  I would suggest that the weight of current authority suggests that states have the ability to enact assessment schemes and attach consequences to the failure to perform satisfactorily on the assessments.  The 14th Amendment likely does not permit a parent to claim exemption from the assessment scheme.  However, that is a very different question than whether a school can (or should) contravene the instruction of a parent to their child that they are to refuse to complete the assessment.  We are very clear with any parent that we counsel that there are potential consequences to opting out.  Indeed, I find one of the greatest strengths of the opt-out movement is the willingness of the parents to accept the consequences.  We believe that under the 14th Amendment, parents have a relatively unfettered right to instruct their children not to participate in activities that they find morally objectionable or that they believe may pose mental or physical harm to their child.  The school may attach consequences to that decision, but they may not contravene or override a parent’s direction to their child on this issue.  We do believe this is a fundamental right of the parent and worthy of much greater respect from the districts and their attorneys.

Mark S for Score

The presentation next turns to another issue raised by TPERN and many parents: the insistence of the TEA that assessments assigned to students who refuse them be marked as “S” and returned for scoring as a zero.  As TPERN pointed out in an earlier article, this results in blatant data manipulation, resulting in a representation that students who never took the assessment were actually assessed.  Other codes currently exist which would accurately reflect the situation, and most states — including those with sizeable opt out movements — accurately reflect when students are not assessed.  For reasons that appear completely grounded in intimidation and shaming, the TEA insists that any student who refuses to be assessed be labeled as having been assessed and missing every question.  The TEA even instructs the school district to assist them with this data manipulation.

Walsh, Anderson’s advice to school districts is as expected: do whatever the TEA tells you to do whether it is right or wrong.  They do not address data manipulation, other than to assure the school districts that the chance of being prosecuted for marking the score sheet “S” is “extremely low”, which must be reassuring to an administrator.  Interestingly, they note that the TEA may change the scoring instructions this year.  We strongly urge the TEA (and districts actually engaged enough to offer input to the TEA) to mark refused assessments in a manner that tells an accurate story: this student was not assessed.  Shaming, blaming and intimidating parents and students is a strategy that will backfire and will only increase parental opposition to high stakes testing.  We can make a difference here.  It is a shame that given an opportunity to educate and engage their clients, this law firm has chosen instead to just urge them to go along with everything that the TEA says instead of engaging the TEA on a rule-making issue to assure that assessment results reflect reality.

Opting Out of Accelerated Instruction

Whatever the STAAR assessment may be, there is no question that the Accelerated Instruction (“AI”) that schools “offer” to students who have not passed the STAAR is not a test.  Thus section 26.010 clearly permits a parent to opt out of this objectionable instruction.  Amazingly, however, and without any legal analysis whatsoever, the school districts’ lawyer instructs her clients that a “school district is simply not permitted by law to grant these requests.”  This selective type of statutory interpretation reeks of cowering before the TEA, as the lawyer herself calls this “a legal interpretation that TEA has affirmed.”  The TEA and Walsh, Anderson are simply wrong about this.  There is no rational argument that section 26.010 does not mean precisely what it says.  If the legislature wanted to place accelerated instruction in the same category as a test, it knows exactly the language to use to do that.  It chose not to.  There is only one conclusion to draw from that: accelerated instruction is unambiguously within the scope of 26.010, and not within the small class of exclusions contained in the statute.

Moreover, the districts’ lawyers have missed an extremely important opportunity to find common ground between parents and schools.  Although the statute requires schools to offer accelerated instruction, there is absolutely no statutory delineation of what that instruction must include, the amount which must be offered, or the location where it takes place.  This intended flexibility contained in the statute has enabled us to reach very reasonable agreements with school districts to permit the AI to be a home study program, to be proposed by the parents as to content, and to include little to no on-campus component, thus assuring that students are not removed from electives, physical education or fine arts programming for test prep.  If the attorney counseling the school districts were interested in helping the districts work together with parents, this should have been pointed out immediately and offered as a way to reach an amicable resolution with parents.  Most parents don’t object to their child learning more math or English.  They object to the loss of curriculum-enriching courses; they object to mindless test prep worksheets; they object to the segregation and grouping of their students in activities that signify STAAR failure to their peers.  Schools have tremendous flexibility to craft AI programs for individual students.  Rather than (wrongly) telling schools they must deny all AI opt out requests, a far better approach would have been to tell administrators that they can work together with parents to find solutions that meet the needs of everyone involved.  It is a shame that opportunity was wasted.

Conclusions

Despite the dismal view of parental rights taken by counsel for the districts, there remains some good news in this handout.  First, the Opt Out movement is being recognized as a force in education that must be dealt with at the state and local levels.  Unfortunately, the chosen method of dealing with the movement still seems to be confrontation, rather than reconciliation.  Hopefully, some districts will realize that it is politically perilous to favor the central planners in Austin over their local parents and start to find solutions that work for parents and schools, both.  Likewise, we also hope that the TEA will change its scoring policy on refused assessments and accurately report who has been assessed and who has not been.  Again, the districts could have been urged to engage on this issue, rather than sit like potted plants waiting for the decision of the TEA to be passed down from on high.  Finally, the attorney’s advice, wholly lacking in legal analysis, instructing districts that they must reject AI opt out requests may be the shortest section of the memo, but it is, unfortunately, the one that signals that districts are being told to, and will, follow a path of confrontation, not reconciliation, with parents objecting to the overreach of standardized testing in the schools.  While this may be quite desirable for school law attorneys who will be busily responding to parent requests at growing rates, we do not believe this will be positive for districts, schools, or parents who are best served by finding ways to work together to improve the overall educational experience of the district’s students.

[The link to this presentation was removed due to a copyright claim by Walsh, Anderson.  Parents wishing to view the presentation should make a Public Information Act request to their local school district to see if they received it.]

Article by: Scott Placek, Arnold & Placek, P.C.